PULIPATI SUBBA RAO Vs. OFFICIAL RECEIVER

JUDGEMENT

(1.) This appeal and one of the revision petitions arise out of an order passed in appeal by the Subordinate Judge of Tenali on 31 March 1933. The remaining revision petition arises our of the original order of the District Munsif of Tenali dated 30 July 1932 from whicn there was an appeal to the Subordinate Judge. The points to be decided in the appeal and in the revision petitions are one and the same. The facts necessary for understanding the question at issue can be stated briefly. One Subba Rao, who is the appellant in the appeal instituted a suit against one B. Guravayya and. his sons and got the family property of the defendants attached before judgment. Two of the sons were minors, and apparently owing to the difficulty of getting these minors properly represented in the suit the plaintiff therein gave up his claim against them, and a decree was passed only as against the father and three of the sons. The father became insolvent and a petition was filed for his adjudication as insolyent and the Official Receiver, Guntur, was appointed interim Receiver Meanwhile the properties which had been attached before judgment were brought to sale by the decree-holder Subba Eao, and a few days before the date of sale, the Official Receiver applied under Section 52, Provincal Insolvency Act for staying the sale and for delivery of the property sought to be sold to the Official Receiver himself.

(2.) This petition was allowed by the District Munsif apparently on the sole ground that the interim Receiver was entitled to maintain a petition under Section 52, Provincial Insolvency Act in view of the decision in Sivasami Odayar V/s. Subramania Aiyar 1932 Mad 95. He did not consider the question whether the entire property was to be delivered to the receiver, and whether the decree holder was not entitled to go on with the sale so far as the share of the three sons who wore judgment debtors were concerned. In the appeal the learned Subordinate Judge was inclined to the view, that no appeal lay from the order of the District Munsif and was prepared to dismiss the appeal as incompetent. Nevertheless ho proceeded to deal with what ho called the merits of the case, though without going into details, and to give a finding. When a receiver is appointed by the Insolvency Court in a petition in which the father of a Joint Hindu family is sought to be adjudicated an insolvent, the property of that insolvent is vested in the receiver, but the shares of the undivided sons do not actually vest in the receiver but only the father's power to sell such shares. Where such shares of the sons have, been attached before the vesting in the receiver has taken place there can be no vesting of even this power to sell the sons share in the receiver. The question which the Subordinate Judge thought he had to decide was whether the attachment of the son's shares is itself valid as against the receiver.

(3.) This question was answered by him-in the negative though the reasoning by which he came to this conclusion is not-very clear. It is contended in this Court that this view about the attachment in question so far as the shares of the sons who are parties to the decree is concerned is wrong. There can be no doubt that the attachment was valid when it was made, and this is what the Subordinate Judge also thought; and it must be deemed to have continued to b& valid and in force except as against the minors who were exonerated from the suit subsequently. This is not a case in which the attachment was of the shares-of some only out of several co-parceners. The attachment was of the family s, whole interest in the poperty, or in. other words the entire ownership in the property was made subject to the attachment. After the minors were exonerated the attachment ceased to be binding as against them, but it cannot be said that the attachment became-thereby wholly and completely invalid or devoid of legal effect. It would therefore follow that as there was a valid attachment of the shares of the three sons when the receiver was appointed the rights which vested in the, receiver could not possibly include the father's power to sell the shares of these sons, and the Official Receiver was not therefore entitled to claim delivery of the entire property.